Global Warming and the Supremes

The Supreme Court attempted to insert itself in the global warming debate this week with its decision in Massachusetts v. EPA, which gives the Federal Environmental Protection Agency authority to regulate greenhouse gas emissions from motor vehicles.

“This is a landmark decision,” former Clinton administration EPA Chief Carol Browner said on PBS’ "The News Hour with Jim Lehrer."

Unfortunately for the court and Ms. Browner, but fortunately for the rest of us, its decision will have little, if any, practical impact on the ever-intensifying climate controversy.

The controversy began on Oct. 20, 1999, more than a year after the Clinton administration signed the Kyoto Protocol­, when 19 environmental activist groups petitioned the Browner-led EPA to regulate greenhouse gas emissions from automobile tailpipes.

But the global warming-believing Browner failed to act on the petition as of the November 2000 presidential election, possibly presuming that an ensuing Al Gore administration, which she likely would have been part of as a long-time Gore acolyte, would grant the petition and commence a rulemaking.

But when Gore’s presidency was thwarted by the December 2000 Supreme Court decision in Bush v. Gore, the Clinton EPA scrambled in its waning days to launch a regulatory process for regulating carbon dioxide from automobile tailpipes, issuing an eleventh-hour “request for [public] comment,” one week before the inauguration of President Bush.

Though President Bush rejected the Kyoto Protocol, his EPA nonetheless continued the regulatory process, ultimately denying the petition in September 2003.

The Bush EPA said that it did not believe it had the authority to regulate greenhouse gases from tailpipes and, even if it did, such regulation would be unwise at the time, and the petitioners, now joined by several states and local governments, including Massachusetts, sued the EPA.

Before we get to the court’s decision, it’s worth noting that Browner and the Clinton EPA had plenty of opportunity to grant the petition and commence a rulemaking to regulate carbon dioxide from autos. But for whatever reason, the Clinton EPA chose not to take action despite believing, as Browner admitted on "The News Hour," that the EPA already had the legal authority to act.

It was particularly ironic that Browner repeatedly and arrogantly slammed the Bush administration for not acting on the petition while sliding over her own failure to act.

Despite the court’s dramatic recitation of the dogma of global warming alarmism at the opening of its decision, its ruling will have little impact on the global warming debate simply because the debate has moved way beyond the EPA.

In 1999, environmentalists were just about the only special-interest group clamoring for greenhouse gas regulation and such regulation — that is, straightforward, mandatory emissions reductions under the Clean Air Act — is what they wanted given that the Senate wasn’t going to ratify Kyoto without the participation of China, India and other developing nations.

Since that time, however, the spectrum of special interests clamoring for global warming regulation has significantly expanded, most importantly to big businesses that are now driving the debate — in Congress and not at the EPA.

Through its legislative power, Congress can not only mandate emissions reductions, but more importantly, it can also dole out the global warming pork.

Wall Street firms such as Goldman Sachs, Lehman Brothers and Morgan Stanley want Congress to establish a so-called cap-and-trade system so that they can profit from the trading of greenhouse gas emissions permits.

Industrial giants such as Dupont and Alcoa want Congress to give them “carbon credits” — essentially free money — for greenhouse gas emissions reductions already undertaken. Solar and wind energy firms, as well as the ethanol lobby, want Congress to award them subsidies and tax breaks.

All the new climate piggies that want to gorge themselves at the public trough have crowded out the environmentalists, transforming the global warming issue from an ostensibly serious save-the-planet crusade into a financial orgy complete with taxpayer piñata.

Despite that the Supreme Court remanded the environmentalist petition back to the EPA for reconsideration, the reality is that Congress is where the real action (money) is.

While EPA action tends to cause businesses pain, Congress tends to dole out pleasure; moreover, given that it took eight years from petition-filing to Supreme Court decision, few in the vast global warming lobby will want to risk another protracted and uncertain EPA rulemaking with its attendant litigation risks.

The value of the court decision to the global warming lobby, it appears, is merely psychological, to be used in public relations efforts.

No doubt from now on, global warmers will spin the court’s actual decisions — limited to whether Massachusetts had standing to sue the EPA and to whether the EPA complied with the Clean Air Act in rejecting the petition — into spurious declarations that the court ruled that manmade global warming is real and that something must be done about it.

But even that is of limited value. Congress is already furiously working away on climate legislation, trying to juggle the various political interests and picking economic winners and losers.

The fate of global warming legislation will depend on the ultimate balance of power between the Congress’ designated winners and losers. It’s difficult to see how the Supreme Court decision will even slightly matter in this Darwinian legislative free-for-all. Steven Milloy publishes JunkScience.com and is an adjunct scholar at the Competitive Enterprise Institute.